BBC STANDARD ONLINE ADVERTISING TERMS
1 DEFINITIONS
In addition to the definitions set out in the Deal Memo, the following words shall have the following meanings:
1.1 “Advertising Copy”: the advertising material supplied by the Client for transmission by BBCW (including material supplied by the Client for incorporation into an advertisement created by BBCW), and any advertising material created by BBCW on behalf of the Client, pursuant to this Agreement;
1.2 “BBC”: the British Broadcasting Corporation;
1.3 “BBCW”: BBC World News Limited;
1.4 “Codes”: the BBC advertising guidelines and any codes, guidelines, rules or regulations regarding advertising or sponsorship by regulatory or governmental authorities as may be applicable to the Website;
1.5 “Technical Requirements”: those technical specifications relating to supply of online advertising copy to BBCW as may be made available to the Client by BBCW (including via the bbcworld.com website) as such may be varied by BBCW from time to time;
1.6 “Website”: the BBC branded website(s) specified in the Deal Memo;
2 PROVISION OF ADVERTISING COPY
2.1 The Advertising Copy, except where it has been expressly agreed it will be supplied by BBCW, must be delivered, complete in creative content and in accordance with the Technical Requirements (including in accordance with best industry practice regarding transmission quality), to BBCW at least five (5) working days before the commencement of the Campaign Period, or, where such advertising material is to be supplied to BBCW for it to incorporate into a final advertisement, on such date and in accordance with such technical requirements as BBCW may specify. In the event that the Advertising Copy is not received within the appropriate timeframe, or is provided incorrectly, then the BBCW’s obligations generally will be reduced pro-rata to the delay including the number of guaranteed impressions or plays obliged to be transmitted/displayed without affecting the Client’s financial responsibility for all impressions and plays ordered and inventory reserved.
2.2 Such delivery shall be at the Client’s sole risk and expense to such office as BBCW designates in accordance with the Technical Requirements. BBCW shall have no obligation to accept Advertising Copy delivered late; if BBCW does accept late delivery it may charge the Client for any extra expenses it incurs as a result of such late delivery. Delivery shall only be deemed to have been made if the Technical Requirements have been met by the supplied Advertising Copy. For the avoidance of doubt, if the Client fails to deliver the Advertising Copy in accordance with these terms the Client will remain liable to pay the Total Cost in full.
2.3 The Client acknowledges that it is responsible for ensuring that Advertising Copy it submits for inclusion on the Website complies with all legal and regulatory requirements and does not contain any material which is objectionable including, without limit, information which is defamatory, obscene, threatening or untrue.
2.4 In the event that all or any the Advertising Copy is being produced by BBCW, the Client will provide BBCW with all reasonable co-operation in order to enable BBCW to produce and display/transmit such Advertising Copy as economically, efficiently and promptly as possible. BBCW agrees to consult with the Client in relation to all aspects of production of the Advertising Copy but the Client acknowledges that BBCW shall retain sole editorial control over production of the Advertising Copy. In particular the Client will provide any material for incorporation in such Advertising Copy as BBCW may reasonably request and such material will be of an appropriate standard. In the event the Client fails to provide such co-operation and the Advertising Copy or material cannot therefore be displayed/transmitted in accordance with the terms of this Agreement, the Client will remain fully liable for the Total Cost.
2.5 BBCW shall at all times retain all right and title in any Advertising Copy produced on behalf of the Client by BBCW.
2.6 In no event will BBCW be liable for any loss or damage to the Advertising Copy or any other materials supplied to BBCW by the Client. The Client shall not deliver to BBCW any original or master recordings of Advertising Copy. Unless otherwise agreed in writing all Advertising Copy supplied by the Client will be destroyed by BBCW if not displayed/transmitted for a period of six (6) months without further reference to the Client. Return of Advertising Copy will be at the request and expense of the Client.
2.7 The Client will promptly supply BBCW with appropriate music cue sheets relating to the Advertising Copy or any material supplied by the Client for inclusion in the Advertising Copy if requested by BBCW. In accordance with the Client’s warranties in clause 7.1, the underlying composition and performance rights of any such music contained in the music cue sheet shall be cleared by the Client for use on the Website.
3 APPROVAL
3.1 Advertising Copy will only be displayed/transmitted on the Website if approved by BBCW. If BBCW, acting in good faith, does not approve the Advertising Copy supplied by the Client and notifies the Client of the reasons for such non-approval the Client will, where reasonably possible, promptly resubmit a new version of the Advertising Copy modified in accordance with any directions from BBCW. BBCW reserves the right at its absolute discretion to alter, fade, edit or refuse to display/transmit the Advertising Copy or part thereof which in the sole opinion of BBCW acting in good faith contains unsuitable material or promotes more than one product or which has been the subject of complaints. BBCW shall not thereby incur any liability to the Client. Further the Client will remain fully liable to BBCW for payment of the Total Cost in these circumstances except in the event of a total failure to transmit where such failure has not resulted from any breach by the Client of the terms of this Agreement.
3.2 If an Advertising Copy links to another site, the Client is responsible for maintaining the link and for the content of the linked site. BBCW may remove any Advertising Copy which contains content or links to a site which, in BBCW's opinion, is defamatory or objectionable or will bring BBCW or the BBC in general into disrepute. The Client will indemnify BBCW from and against any claims or liability arising from links contained in an Advertising Copy.
4 DISPLAY/TRANSMISSION OF ADVERTISING
4.1 BBCW will endeavour to display/transmit the Advertising Copy in the Territory during the Campaign Period in accordance with the terms of the Deal Memo.
4.2 If an Advertising Copy is not transmitted/displayed in accordance with the agreed performance criteria specified in the Deal Memo within the Campaign Period for reasons other than the default of the Client, BBCW will endeavour to achieve such performance level within three (3) months of the end of the Campaign Period, the Client will be entitled to an appropriate pro-rata rebate of the Total Cost based on the number of impressions or spots actually transmitted.
4.3 Subject always to the provisions of this Agreement, the service of impressions, plays or other performance criteria relating to the Advertising Copy under this Agreement shall be conclusively evidenced to have taken place if the report generated by the advertising software used by BBCW records that such have taken place. For the avoidance of doubt a “play” will be deemed to have taken place if a pre roll advertisement is launched by a user, regardless of whether the advertising copy is transmitted in full.
5 POSTPONEMENT OR ALTERATION
If the Client wishes to postpone the Campaign Period for not more than six (6) months BBCW shall consider such request in good faith but shall have no obligation to consent to such postponement. Any acceptance of such postponement shall require immediate pre-payment of the Total Cost less any payments already made. For the avoidance of doubt, cancellation is not allowed under this Agreement.
6 ACCOUNTS
6.1 BBCW shall render invoices to the Client for all sums due to BBCW pursuant to this Agreement in accordance with the Deal Memo. For the avoidance of doubt the Total Cost is exclusive of any applicable VAT or sales tax; where such tax is payable it will be the obligation of the Client to pay it. The Client will not be entitled to deduct any amounts from the Total Cost paid to BBCW except that, in the event that the Client is the Advertising Agency, the Total Cost will be subject to a 15% discount.
6.2 All invoices shall be settled by the Client not later than thirty (30) days from the date of the invoice. If the Client is in default of payment by the due date BBCW, shall without prejudice to its other rights, be entitled to refuse to transmit the Advertising Copy and BBCW’s obligations generally will be reduced pro-rata to the delay in payment including the number of guaranteed impressions or plays obliged to be transmitted/displayed, without affecting the Client’s financial responsibility for all impressions and plays ordered and inventory reserved.
6.3 The existence of a valid query on any individual item in an invoice will only affect the due date of payment of that individual item. The Client must notify BBCW of any such query within seven (7) working days from the date of the invoice and no other queries will be deemed to be valid after such time.
6.4 It will not be open to the Client to claim any rights of set off in respect of any invoices.
6.5 If payment has not been received by the due date then BBCW shall have the right to levy interest at the rate of four per cent (4%) per annum above the base rate for the time being in force at the HSBC Bank plc in London and such interest shall be calculated from the date such sums become due until they are paid.
6.6 For the avoidance of doubt, any discounts or rebates offered by BBCW shall only be available in respect of the advertising campaign contracted under this Agreement and shall not be available to any parent, associate or subsidiary company of the Advertiser.
6.7 For the avoidance of doubt, where the Advertising Agency is the Client, it is contracting as principal in all respects and as such will be personally liable for the payment of the Total Cost and for all other obligations under this Agreement.
7 WARRANTIES AND INDEMNITIES
7.1 The Client hereby warrants, represents and undertakes to BBCW that:-
(a) in respect of the Advertising Copy or any part thereof supplied by the Client or any other material provided to BBCW by the Client (including the Advertiser’s brand) it will not infringe the copyright, trade mark or any other rights or be defamatory of any third party and their broadcast by BBCW will not give rise to a right for any third party to claim payment and/or damages;
(b) the Client has obtained and paid for all necessary consents, licenses, and permissions to advertise on the Website;
(c) the Client has taken or will take all necessary steps to ensure that its advertising on the Website will not be illegal or actionable for any reason in any territory and shall comply with all applicable legislation, rules and regulations including for the avoidance of doubt any applicable advertising standards and codes, including for the avoidance of doubt the Codes, privacy laws or any relevant legislation and/or regulation, with respect of (and without limitation to) data protection, sex discrimination, race discrimination, disability, and including any legislation or regulation relating to the provision of Financial Services, which apply to specific advertisers, products or services
(d) If any Advertising Copy contains the name or pictorial representation (photographic or otherwise) of any living person and/or any part of any living person and/or copy by which any living person is or can be readily identified, the Client warrants that the Client and/or the Advertising Agency (if applicable) has obtained the authority of such living person to make use of such name, representation and/or copy.
(e) The Client is solely responsible for fulfilling and dealing with any orders or enquiries relating to the goods, services or promotion to which the Advertising Copy relates and will indemnify and hold BBCW harmless accordingly.
7.2 The Client will fully indemnify and keep BBCW and its directors, officers and employees fully indemnified against all actions, proceedings, costs (including legal fees), damages, expenses, fines, losses (including loss of profits) penalties, claims, demands and liabilities directly or indirectly suffered or incurred by BBCW (or its directors, officers or employees) howsoever arising from any breach of the Client’s warranties, obligations or agreements contained herein.
7.3 The Client will provide BBCW with full co-operation in defending any claim or complaint concerning the Advertising Copy including, but not limited to, providing evidence in support of advertising claims and copies of underlying rights clearances.
7.4 The Client acknowledges and confirms that BBCW has not provided it with any guarantees concerning reach of the Website or target audience. Any statistics related to the Website provided to the Client are provided as an estimate based on current available research only and should not be relied on by the Client.
8 BBCW’S RIGHT TO COPY THE ADVERTISING COPY
The Client hereby grants BBCW the right to make copies of the Advertising Copy for BBCW’s archives and to enable BBCW to submit a copy of the same to any appropriate authority in order to comply with the provisions of all applicable Codes, regulations and/or legislation.
9 EDITORIAL CONTROL
The content of the Website shall be entirely within the discretion of BBCW; BBCW reserves the right for whatever reason to cease or interrupt the display and/or transmission of the Website or of editorial content within it without prior notice to the Client, and the Client acknowledges that in the event of such disruption, it shall have no recourse to any claim of damages arising directly or indirectly, from the cessation or interruption of the display/transmission of the Website or such Content .
10 TERMINATION
10.1 Either party may terminate this Agreement with immediate effect by notice to the other party (the “Breaching Party”) on or at any time after the occurrence of any of the following events:
(a) a material breach by the Breaching Party of an obligation under this Agreement and, if the breach is capable of remedy, the Breaching Party fails to remedy the breach within thirty (30) days starting on the day after receipt of notice from the other party giving particulars of the breach and requiring the Breaching Party to remedy the breach; or
(b) any material step is taken with a view to the other party ceasing to carry on business, or going or being put into receivership, administrative receivership, administration, bankruptcy, liquidation or any equivalent process in any relevant jurisdiction.
10.2 BBCW may terminate this Agreement at any time and without liability to the Client, by notice to the Client with immediate effect if the Advertiser’s conduct or any material change in the business of the Advertiser (including the composition or character of its services) or in the ownership of the Advertiser is such that in the good faith opinion of BBCW it adversely affects the reputation of BBCW, the BBC or the Website;
10.3 If BBCW terminates this Agreement under Clause 10.1 such termination (and losses, liabilities and costs incurred as a direct result of that termination) will be deemed to be a direct result of the default or defaults of the Client and shall give rise to an immediate right to payment of the balance of the Total Cost from the Client. The expiry or termination of this Agreement for any reason shall not cancel any indebtedness or otherwise affect the accrued rights and liabilities of the parties to this Agreement and for the avoidance of doubt, clauses 6, 7, 8, 11 and 15 shall survive termination
11 LIMITATION OF LIABILITY
11.1 BBCW shall not be liable to the Client, under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, for any loss of profit, goodwill, business opportunity, anticipated saving or any type of special, indirect or consequential loss or damage.
11.2 Subject to Clause 11.3 below, BBCW’s entire liability (if any) to the Client, under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, shall be limited to the amount actually paid by the Client to BBCW.
11.3 Neither party’s liability to the other for (a) death or personal injury resulting from the negligence of itself, its servants or agents (b) fraud or (c) any other liability the exclusion of which is prohibited or limited by law, shall be excluded or limited by the provisions of this Agreement, save to the extent permitted by law.
12 ASSIGNMENT
The Client shall not be entitled to assign or transfer or otherwise deal with any of its rights or obligations under this Agreement without the prior written consent of BBCW and any purported assignment shall confer no rights upon the purported assignee. BBCW shall at any time be entitled to assign its rights under this Agreement (or any part thereof) to any entity within the BBC group.
13 FORCE MAJEURE
Neither party to this Agreement shall be liable to the other for any failure of performance under this Agreement which is due to a so-called act of God, fire, lockout, strike or other official labour dispute, union action, riot or civil commotion, satellite failure, failure of technical facilities, act of public enemy, enactment, rule or order or act of government (whether local or national), or other act or event of a similar or dissimilar nature beyond the reasonable control of that party, any such act or event being deemed an event of force majeure.
14 NOTICES
All notices and any other communications given under this Agreement shall be in writing and shall be given by personal delivery, first class post or airmail or facsimile but not for the avoidance of doubt e-mail. All such communications shall be delivered or sent to the respective addresses of the parties set forth above (or to such other address as either party may notify to the other from time to time during the Agreement). Notice given by post shall be deemed to have been given seven (7) working days after the date of posting by recorded or registered post. Notice given by facsimile shall be deemed to have been given twenty-four (24) hours after transmission of the same. All such communications, provision of information and other exchanges between BBCW and the Client under this Agreement whether verbal or written shall be in the English language.
15 CONFIDENTIALITY
The terms and conditions, other than the existence and duration, of this Agreement shall be kept confidential by the parties hereto and shall not be disclosed by either party to any third party without the written consent of the other party except where such disclosure is necessary to establish a bona fide claim by the disclosing party against the other in relation to this Agreement or where disclosure is required by any law, stock exchange rule, regulation, court order or governmental agency, in which event the relevant party shall so notify the other as promptly as reasonably practicable (and if possible prior to making any disclosure) and shall use its reasonable endeavours to seek confidential treatment of such information. This Agreement may also be disclosed on a need-to-know basis to each party’s employees, accountants, auditors, investors, lenders and legal counsel and to the employees, auditors, investors, lenders and legal counsel of each party’s affiliates. Each party shall ensure that any such person to whom it discloses this Agreement abides by the provisions of this Clause 15 as if it were party to the Agreement in place of that party. The terms of this clause will apply for a period of three (3) years from signing.
16 GOVERNING LAW
This Agreement shall be interpreted in accordance with the laws of England and Wales. Any dispute arising hereunder shall be subject to the exclusive jurisdiction of the English Courts or at the option of BBCW the courts of any territory in which the Client is established and the parties hereby submit to such jurisdiction.
17. MISCELLANEOUS
17.1 This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes and cancels any and all prior oral or written agreements, understandings or discussions between the parties on such subject matter. BBCW will not be bound by any terms or conditions, printed or otherwise, appearing on any purchase order, copy instructions, contract or other documents submitted by the Advertiser or the Advertising Agency or expressed orally. No terms, obligations, representations, promises or conditions, warranties, oral or written, express or implied, have been made or relied upon other than those contained in this Agreement. Neither party shall have any liability to the other party (in equity, contract or tort, under the Misrepresentation Act 1967 or in any other way) for:
(a) any misrepresentation which has not become a term of this Agreement; or
(b) any breach of warranty or undertaking (other than those contained in this Agreement) whether express or implied; or
(c) unless such misrepresentation, warranty or undertaking was made fraudulently.
17.2 All rights, remedies, undertakings and obligations contained in this Agreement shall be cumulative and none of them shall be in limitation of any other rights, remedies, undertakings or obligations of any party. No failure or delay on the part of either of the parties to this Agreement relating to the exercise of any right power privilege or remedy provided under this Agreement shall operate as a waiver of such right power privilege or remedy or as a waiver of right power privilege or remedy in relation to any preceding or succeeding breach by the other party to this Agreement.
17.3 No alteration, modification or waiver of any of the terms of this Agreement shall be binding unless in writing signed by a duly authorised representative on behalf of each party to this Agreement.
17.4 The Client acknowledges that BBCW is acting as principal in this Agreement and not entering into it for the benefit of its affiliated entities. The Client shall have no right or claim against any such affiliate for breach of this Agreement.
17.5 This Agreement does not create or infer any rights under the Contracts (Rights of Third Parties) Act 1999 enforceable by any person who is not a party to the Agreement except that BBCW’s directors, officers and employees may enforce and take the benefit of the Client’s indemnity under clause 7.2.
17.6 If any one or more of the provisions of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions herein shall not in any way be affected or impaired.